BIA: Criminal courts decide if mental illness precludes dangerousness

The Board of Immigration Appeals held that a migrant’s mental illness cannot preclude a finding that he was convicted of a particular serious crime. Matter of G-G-S-, 26 I&N Dec. 339 (BIA July 17, 2014) (Neal, Greer, and Kendall Clark, Board members). Board member Greer wrote the panel’s decision.

This case involved a lawful permanent resident with a long-running history of paranoid schizophrenia who was convicted of assault with a deadly weapon, Cal. Penal Code § 245(a)(1). To increase the likelihood that he received a fair hearing, the immigration judge presiding over his removal case adopted a number of procedural safeguards including ensuring that the migrant was represented by counsel and was able to live with his family during the course of proceedings. Matter of G-G-S-, 26 I&N Dec. at 340. That did not prevent the IJ from finding that the migrant’s conviction constitutes a particularly serious crime (PSC) for purposes of withholding of removal, INA § 241(b)(3)(B).

On appeal, the migrant claimed that the IJ should have taken into consideration his mental illness in assessing whether he had the ability to commit a PSC. The BIA disagreed. Whether or not a person’s mental health affects culpability is a matter best left to the criminal courts, the Board explained, rather than the immigration courts: “consideration of an alien’s mental health as a factor in the criminal act falls within the province of the criminal courts and is not a factor to be considered in a particularly serious crime analysis.” Matter of G-G-S-, 26 I&N Dec. at 345.

The Board couched its conclusion by acknowledging its institutional incompetency relative to criminal courts. Neither it nor the immigration judges who preside of removal cases in the first instance can rival the expertise that criminal courts have when it comes to criminal law. And because mental illnesses can affect the ability of the prosecution to satisfy a crime’s elements or the ability of a defendant to successfully raise a criminal defense, “an individual’s mental illness or disorder…are issues best resolved in criminal proceedings by the finders of fact.” Id.

Though this is superficially appealing reasoning, the definition of a PSC and the analysis that immigration courts use to determine whether an offense constitutes a PSC cast doubt on the Board’s conclusion. The INA specifies that any aggravated felony for which a person is sentenced to at least five years imprisonment is a PSC. INA § 241(b)(3)(B)(ii). Aggravated felonies punished by less than that amount can also be considered PSCs. “[F]or an alien who has not been convicted of an aggravated felony or whose aggravated felony conviction did not result in an aggregate term of imprisonment of 5 years or more, it is necessary to examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction to determine whether the crime was particularly serious.” Matter of G-G-S-, 26 I&N Dec. at 342-43

A particularly serious crime, the Board added, is one that involves dangerousness. Id. at 343. In determining whether a particular crime “posed a danger to the community,” IJ’s are guided by the text of the statute of conviction, id. at 344, but they are not limited to the statute. Instead, an IJ can consider “all reliable information that is relevant.” Id. at 343.

Rather than adopt the position that it did, the Board could have relied on the broad authority that IJ’s have to consider “all reliable information” to take into account the migrant’s mental illness. Paranoid schizophrenia strikes me as the type of “circumstances and underlying facts” that the BIA explicitly instructs IJ’s to consider in gauging the conviction’s seriousness. It might not always be enough to avoid a PSC determination, but preventing IJ’s from ever considering mental illness is an ill-conceived and overly-narrow interpretation of the proper scope of the PSC analysis.